Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of claims 1-24, in the reply filed on 11/21/2025 is acknowledged. The traversal is on the ground(s) that all claims depend from claim 1 and therefore have unity of invention. This is not found persuasive because claims 29, 30, and 33 do not depend from claim 1 and do not contain the same special technical features.
The requirement is still deemed proper and is therefore made FINAL. Considering claim amendments, claims 1-25 and 27 are now all part of species 1 and will be examined herein. Claims 29, 30, and 33 are considered drawn to a non-elected invention and should be indicated “withdrawn” in the next response.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that use the word “means,” and are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “means for carrying out the method of claim 1” in claim 25.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 27 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because "a computer readable medium comprising instructions" is not defined in the specification and generally refers to either hardware or software, either a physical or virtual device. Software is not a statutory subject matter class since is possibly transitory and does not necessarily include any element beyond signals. Correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim 25 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
With respect to claim 25, the phrase “means for carrying out the method of claim 1” is being interpreted as means plus functions limitation however, the specification fails to directly tie the physical structure associated with the means to carry out the defined function. Although the entire specification describes the function of claim 1, it isn’t clear what structure specifically is intended as the means to perform the method. Correction is required.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-25 and 27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to claim 1, the limitation “aligned horizontally” is indefinite. Without a structural relationship to the rest of the claimed structure, it is unclear how the “horizontal” alignment relates to the rest of the claimed limitations. Without a relationship, the device can be turned any way in order for the sample area to be aligned horizontally with respect to our usual frame of reference, the Earth. Correction is required.
With respect to claims 10, 11, 13, 14, 18, 20, the limitations are in the passive voice (“is calculated,” “warning is provided,” “outline image is generated,” “a deviation is determined,” “distribution is extrapolated,” “parameter is extracted”) causing confusion as to if these are steps in the claimed method or if it is simply a comment on extracurricular steps not required by the claimed method. Method steps should be positively and clearly recited (i.e. “calculate a particle size”) for clarity. Correction is required.
With respect to claim 18, the limitation “the minimum detectable particle size” lacks antecedent basis.
With respect to claim 23, the limitation “a separate computer device” is unclear as to what it is separate from. Does this mean a second computer device different from the “mobile computer device” or “machine interface” in claim 1? Or is this a computing device that is spaced apart from the other claimed components? Correction is required.
The balance of claims are likewise rejected for failing to correct the deficiencies in the above rejected claims upon which they depend.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 2, 3, 4, 7, 8, 12, 14, 22, 23, and 24 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sandler et al. U.S. Patent #7,733,485.
With respect to claim 1, Sandler et al. discloses a measuring system for measuring a granular sample comprising:
Providing a sample of solid particles to be analyzed in a predefined sample area (Figure 1 and Figure 7, sample of solid particles = powder sample 1, predefined sample area = plate 2 or sample container 30, Col.4, l 43-45, Step A)
Taking at least one digital image of the sample of solid particles with a camera of a mobile computer device or a camera connected to a mobile device (Figure 1 and Figure 7, camera = 5, Step B, Col.1, l 60-63, Col.4, l 48-53, wherein the camera is connected to a portable computer = camera connected to a mobile device)
Performing an imaging particle analysis of the at least one digital image for extracting at least one particle size parameter or at least one particle shape parameter of the population of particles identified in the at least one digital image (Col.5, l 15-27, Col.2, l 4-22)
Making available at least one particle size parameter or at least one particle shape parameter via an interface via a machine interface or a data storage medium (Col.4, l 48-53, inherent that the calculations are saved somewhere within the computer at least temporarily = data storage medium)
Wherein the predefined sample area is a two dimensional sample area which is aligned horizontally (Col.4, l 54-56)
With respect to claim 2, 3, 4, 7, 8, 12, 14, 22, 23, and 24, Sandler discloses all of the limitations as applied to claim 1 above. In addition, Sandler discloses:
2- Wherein the mobile computer device comprises a human interface device (Figure 7, portable computer 70 has a keyboard = human interface device)
3- The mobile computer device is selected from a portable computer (Col. 4, l 51-53)
4- the camera is configured to take images in the visible spectrum (Col.3, l 31-33, wherein CCDs are configured for visible light, among other wavelengths, Col.5, l 3-5, conventional camera = inherently visible spectrum)
7- the predefined sample area is a two-dimensional sample area (Figure 7, wherein from each side of the container 30, the sample area is two-dimensional)
8- the particles in the sample are aggregates (Col.2, l 39-41, wherein aggregate is defined as a mix of materials = multi-component samples)
12- wherein the at least one particle size parameter extracted comprises the particle size distribution of the population of particles identified in the at least one digital image (abstract, Col.5, l 19-28, grain-size distribution)
14- the at least one digital image is at least two digital images and for each image the imaging particle analysis is performed and by taking into account each of the at least one particle size parameter individually extracted from the at least two images, a deviation of the at least one particle size parameter is determined (Col.2, l 4-17, wherein each image (screen) has percentage mass fraction determined = particle size parameter, deviation = grain size distribution)
22- the method is at least partly performed on the mobile computer device (Col.4, l 46-52)
23- the image analysis or the making available is conducted on a separate computer device (Col.4, l 48-52, Figure 7, wherein the computer 70 is separate from the camera 5)
24- the image is stored on an external computer device (Col.4, l 48-51, image stored on capture card or USB)
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 5, 6, 9, 10, 11, 15, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Sandler U.S. Patent #7,733,485.
With respect to claim 5 and 6, Sandler discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose the resolution of the camera and that the sample area comprises a reference scale and/or has a known size.
It would have been obvious to one of ordinary skill in the art at the time of the invention to select a resolution of at least 2 megapixels since it has been held that selecting an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215. In this case the camera resolution is a result effective variable that determines the scale that can be detected. One of ordinary skill in the art recognizes that the resolution of the camera is a balance between noise, sensitivity, and cost and selecting the optimum value is within ordinary skill.
It would have been obvious to one of ordinary skill in the art at the time of the invention to have a known sample area size since this is essential for selecting the resolution of the camera and to calculate the size distribution. Knowing the area that the sample covers or having a reference scale is essential to give meaning and scale to the image.
With respect to claim 9, Sandler discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose the camera is aligned so that a share of the sample area in the image is maximized.
It would have been obvious to one of ordinary skill in the art at the time of the invention to align the camera such that the sample area is maximized in the image since this optimizes the image efficacy and minimizes noise. Aligning the camera on the subject is common sense.
With respect to claim 10, Sandler discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose a minimum detectable particle size is calculated by taking into account resolution, sample size in image, and length of sample area.
It would have been obvious to one of ordinary skill in the art at the time of the invention that minimum detectable particle size being calculated based on the resolution of the camera, the length of the sample in the image, and the length of the actual sample is basic image analysis mathematics and one of ordinary skill in the art would acknowledge this is a realistic way to understand the limits of an inspection.
With respect to claim 11 and 15, Sandler discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose generating an warning to a user if the minimum detectable particle size or the deviation within image comparisons is beyond a threshold.
Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to provide a warning if measurements are not within an expected threshold or effective threshold. In this case, if particles of a certain size cannot be measured or the images have too large a deviation, alerting the user prior to performing erroneous measurements would save time and energy. A warning alert from a threshold comparison is just an automated way to detect an error early.
With respect to claim 18, Sandler discloses all of the limitations as applied to claim 1 above. However, Sandler fails to disclose that if the particles size is below the threshold the particle size distribution is extrapolated.
It would have been obvious to one of ordinary skill in the art at the time of the invention to extrapolate particle size based on the most relevant information since this is traditional in data interpretation. Extrapolating data beyond the existing models is well known in the art and allows the ability to provide some sort of measurement even if the accuracy is not as high as for within thresholds.
Claims 16, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Sandler U.S. Patent #7,733,485 in view of Laitinen et al. “Does a powder surface contain all necessary information for particle size distribution analysis?”.
With respect to claim 16, 17, and 19, Sandler discloses all of the limitations as applied to claim 1 above. However Sandler fails to disclose the at least one particle size parameter comprises at least one statistical parameter selected from the group of average particle size, mean diameter, Dx value and/or fineness modulus. Additionally, Sandler fails to disclose the at least one particle size parameter comprises a deviation form a predefined nominal value and the at least one particle shape parameter extracted comprises roundness, sphericity, aspect ratio, roughness, solidity, flakiness index, shape index, percentage of crushed and broken surfaces, and/or angularity.
Laitinin discloses image analysis for particle size distribution comprising:
The at least one particle size parameter comprises at least one statistical parameter selected from the group of average particle size or mean diameter (Table 1, Page 222, bottom of first column into top of second column)
The at least one particle size parameter extracted comprises a deviation from a predefined nominal value or distribution (Table 1, Page 22, bottom of first column into top of second column)
The at least one particle shape parameter extracted comprises roughness (Page 217, second column, “bring up issues concerning comparisons of different sizing methods, the number of analyzed particles and elements in shape and texture quantification of particles”)
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the data analysis of Laitinin including the type of particle parameter selected since Sandler uses Laitinin as prior art and considering their shared goals of measuring grain size distribution, one of ordinary skill in the art would look to Laitinin to see what other parameters can be measured from the same method as described in Sandler. Using the average particle size diameter, a deviation from the nominal value, and a shape parameter as described by Laitinin as known particle parameters that can be used with like methods, would result in more information from a single measurement, saving time and money.
Citations
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Misawa U.S. Patent #11,385,156 discloses a particle size measuring method and apparatus.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA CAROLE BRYANT whose telephone number is (571)272-9787. The examiner can normally be reached M-F, 12-4 pm.
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/REBECCA C BRYANT/ Primary Examiner, Art Unit 2877